Evidence should have been disclosed: Crown attorney

A mistrial has been declared in the case of Jeffery Tippett, shown here in Supreme Court in Corner Brook Thursday.

Corner Brook — The Crown attorney prosecuting the second-degree murder charge against Jeffery Tippett is urging the public to remain confident in the legal system, despite the fact a failure by police to provide timely disclosure to the Crown has resulted in a mistrial in this high-profile case.

Tippett is charged with second-degree murder in the 2007 death of 11-month-old Tameron Rose.

Tameron died Jan. 31, 2007, one day after being airlifted to St. John’s with a serious brain injury.

Tippett, who was charged days later, and his partner Tanya Tulk, had been babysitting the infant at the time.

The mistrial, which means a new jury will have to be selected to hear a new trial if one is held, was ordered by Justice Alan Seaborn in the Supreme Court of Newfoundland and Labrador in Corner Brook Thursday morning.

It had been a week since the 12-member jury has heard evidence in the trial, after having heard testimony from a total of 13 witnesses called by the Crown.

In the ensuing week, the lawyers involved were embroiled in a series of discussions which ultimately led to Seaborn’s decision to order a new trial in the Tippett case.

The exact details of the issues dealt with by the Crown and defence remain subject to a publication ban, since the indictment against Tippett is still before the court.

However, when the jury was summoned to the courtroom Thursday morning, Seaborn did tell them there were certain exhibits in the possession of the RNC investigators which were not provided to the Crown until after the trial started.

The trial began Sept. 15 and the Crown became aware of the new evidence Sept. 24.

The next witness the Crown had expected to call was an RNC forensic identification officer, who was expected to enter a number of exhibits related to the case.

Because the Crown was unaware of the recently discovered evidence, the judge said, the information could not be passed on to the defence so it could make a full answer and defence to the charge against Tippett.

Seaborn said time is now required for the Crown and the defence to examine and determine the significance of this evidence.

He said it would not be fair for the jurors to be expected to wait until that process is completed and discharged them from their civic duty.

Crown attorney Douglas Howell agreed with Seaborn’s decision that it was clear this evidence was something which should have been disclosed to the Crown earlier than it was.

“Obviously, it’s unsettling when these sorts of things happen when you’re in the middle of a trial, but they do happen,” Howell said afterward. “It’s not an extremely unusual event for something to be discovered at a late stage in the proceeding.”

He said a mistrial is the appropriate remedy or these particular circumstances.

”Counsel on both sides have dealt with the situation as it has arisen very quickly,” Howell said. “We have brought it to the attention of the court, brought it to the attention of the jury ... What I would say to the public is that they should be reassured that the process that has unfolded is the process that has been put in place to deal with these situations.”

Howell would not venture a guess as to how long it may now take for this matter to conclude.

“As the judge indicated, this information has led to a requirement for some forensic analysis of some items,” he said. “It’s difficult to say how long that will take and what, if anything, will arise from that. That may or may not be a factor in determining when the trial gets under way again.”

Keir O’Flaherty, the lawyer who has been defending Tippett, also said a mistrial is the correct decision since the new evidence could change the way he argues on behalf of his client.

“When you prepare for a serious trial like this as a defence lawyer, you do so on the basis of the information you have received under the law,” O’Flaherty said. “When the information changes, then the whole landscape of what you originally thought you were facing looks different. So, it can affect every single question, it can affect a lot of witnesses and how you approach them.”

O’Flaherty would not comment on what he thought of the way the investigators have handled this case.

“I don’t know what that (commenting on the investigation) would add to what has happened,” he said.

In defending a client, a lawyer often has to roll with the punches, O’Flaherty said.

“But some punches you just can’t roll with,” he said, continuing with the prize fight analogy. “Some punches require you go to the corner, get some water and a pep talk from your coach and you get back up again. That’s what happened here.”

The Royal Newfoundland Constabulary in Corner Brook declined to comment on the development in the trial or how its investigation could have overlooked some evidence from being disclosed to the Crown in the nearly 44 months since 11-month-old Tameron Rose was declared brain dead at the Janeway Children’s Hospital in St. John’s. Any comment was deferred to the RNC’s media relations officer in St. John’s, who had not responded to The Western Star’s request for comment as of press time.

Declined to comment

Maria Rose, Tameron’s mother, has attended court for the last several days after having testified in the early stages of the trial. She declined to comment on Seaborn’s decision to declare a mistrial after court adjourned Thursday.

Tippett, who was released on bail in 2007, remains in police custody since his arrest nearly one year ago for offences alleging he deliberately caused delays in his prosecution. A preliminary inquiry into those five offences — which include impersonation, obstruction of justice, mischief, fabricating evidence and breaching a court order — is scheduled to take place in provincial court in December.

Should a new jury trial be scheduled for the murder charge, it would mean a jury would have to be selected for a third time in this case. Tippett was originally scheduled to go to trial in September 2009, but the trial was postponed on the day it was to start when his former lawyer applied to withdraw from representing Tippett.

The lawyers involved will now meet with Seaborn Oct. 15 to discuss a date for a pre-trial conference.